Court Unanimously Keeps Lower Court's Injunction Against Trump's Immigration Order In Place

from the for-now dept

Let’s start this out by being quite clear: this is still the beginning of a fairly long legal process. But, the 9th Circuit appeals court has just unanimously ruled that the lower’ court’s injunction barring Donald Trump’s executive order on immigration should remain in place. In short: the federal government remains barred from actually carrying out the order. This does not mean, as our President has wrongly suggested, that people are free to randomly enter the country in droves. They still have to go through the already thorough vetting and visa process. It just means that the blanket ban that caused so much havoc cannot be used to bar entry into the country. We were among those who signed onto an amicus brief for the wider tech industry, asking the court to rule this way, so we’re happy they did.

The court is pretty clear, and it’s somewhat surprising that the ruling was unanimous. While it’s always difficult to tell how judges are going to rule based solely on oral arguments, it certainly felt like two judges were leaning towards the states’ argument and one towards the federal government’s. But when it was time to write an opinion, all three came down on the side of the states. Not only that, but they did it per curiam, meaning that the entire panel “wrote” the opinion (rather than singling out the specific judge who wrote it). This can be seen as the three judges showing a united front, and also a pre-emption towards the likelihood of our thin skinned President picking directly on one of the three as somehow being responsible (as he did in earlier tweets about the case). Either way, the judges stood together, noting that the federal government’s argument was weak:

To rule on the Government’s motion, we must consider
several factors, including whether the Government has
shown that it is likely to succeed on the merits of its appeal,
the degree of hardship caused by a stay or its denial, and the
public interest in granting or denying a stay. We assess those
factors in light of the limited evidence put forward by both
parties at this very preliminary stage and are mindful that our
analysis of the hardships and public interest in this case
involves particularly sensitive and weighty concerns on both
sides. Nevertheless, we hold that the Government has not
shown a likelihood of success on the merits of its appeal, nor
has it shown that failure to enter a stay would cause
irreparable injury, and we therefore deny its emergency
motion for a stay.

Again, this is far from over. There will still be a fight at the lower court over a permanent injunction, and then numerous appeals (not to mention the other cases around the country).

As for the opinion, it’s good to see that the court went as far as it did. It really could have just punted the issue on a number of grounds, including that the appeals court has no grounds to overturn a temporary restraining order. But, instead, it went further and suggested that the federal government’s position here is weak. There were a few different issues in the case, and the court wasn’t very impressed by any of the federal government’s arguments. One was that the states (Washington and Minnesota) didn’t have standing to challenge the executive order. Not so, says the court, pointing to a number of cases where state universities had standing to sue on actions related to the rights of their students:

Most relevant for our purposes, schools have been
permitted to assert the rights of their students…. As in those cases, the interests
of the States’ universities here are aligned with their
students. The students’ educational success is “inextricably
bound up” in the universities’ capacity to teach them…. And the universities’ reputations
depend on the success of their professors’ research. Thus, as
the operators of state universities, the States may assert not
only their own rights to the extent affected by the Executive
Order but may also assert the rights of their students and
faculty members.

We therefore conclude that the States have alleged harms
to their proprietary interests traceable to the Executive
Order. The necessary connection can be drawn in at most
two logical steps: (1) the Executive Order prevents nationals
of seven countries from entering Washington and
Minnesota; (2) as a result, some of these people will not
enter state universities, some will not join those universities
as faculty, some will be prevented from performing research,
and some will not be permitted to return if they leave. And
we have no difficulty concluding that the States’ injuries
would be redressed if they could obtain the relief they ask
for: a declaration that the Executive Order violates the
Constitution and an injunction barring its enforcement. The
Government does not argue otherwise.

On that procedural question of whether or not the court can even review a temporary restraining order (TRO), the court says it’s fine:

We are satisfied that in the extraordinary circumstances
of this case, the district court’s order possesses the qualities
of an appealable preliminary injunction. The parties
vigorously contested the legal basis for the TRO in written
briefs and oral arguments before the district court. The
district court’s order has no expiration date, and no hearing
has been scheduled. Although the district court has recently
scheduled briefing on the States’ motion for a preliminary
injunction, it is apparent from the district court’s scheduling
order that the TRO will remain in effect for longer than
fourteen days. In light of the unusual circumstances of this
case, in which the Government has argued that emergency
relief is necessary to support its efforts to prevent terrorism,
we believe that this period is long enough that the TRO
should be considered to have the qualities of a reviewable
preliminary injunction.

On the question of whether or not courts even have the authority to review this executive order, the court says of course it does and it’s patently silly for the federal government to suggest otherwise.

The Government contends that the district court lacked
authority to enjoin enforcement of the Executive Order
because the President has “unreviewable authority to
suspend the admission of any class of aliens.” The
Government does not merely argue that courts owe
substantial deference to the immigration and national
security policy determinations of the political branches—an
uncontroversial principle that is well-grounded in our
jurisprudence. See, e.g., Cardenas v. United States, 826 F.3d
1164, 1169 (9th Cir. 2016) (recognizing that “the power to
expel or exclude aliens [is] a fundamental sovereign attribute
exercised by the Government’s political departments largely
immune from judicial control” (quoting Fiallo v. Bell,
430 U.S. 787, 792 (1977))); see also Holder v.
Humanitarian Law Project, 561 U.S. 1, 33-34 (2010)
(explaining that courts should defer to the political branches
with respect to national security and foreign relations).
Instead, the Government has taken the position that the
President’s decisions about immigration policy, particularly
when motivated by national security concerns, are
unreviewable, even if those actions potentially contravene
constitutional rights and protections. The Government
indeed asserts that it violates separation of powers for the
judiciary to entertain a constitutional challenge to executive
actions such as this one.

There is no precedent to support this claimed
unreviewability, which runs contrary to the fundamental
structure of our constitutional democracy.

The court further notes that the federal government’s desire to run around screaming “NATIONAL SECURITY” as if that means the courts are powerless to do anything is also completely bogus.

Indeed, federal courts routinely review the
constitutionality of—and even invalidate—actions taken by
the executive to promote national security, and have done so
even in times of conflict.

On to the key question of whether or not the court should lift the TRO and allow the executive order to be in effect again. The court here basically rips up the federal government and notes that it has no real argument.

The Fifth Amendment of the Constitution prohibits the
Government from depriving individuals of their “life,
liberty, or property, without due process of law.” U.S.
Const. amend. V. The Government may not deprive a
person of one of these protected interests without providing
“notice and an opportunity to respond,” or, in other words,
the opportunity to present reasons not to proceed with the
deprivation and have them considered….

The Government has not shown that the Executive Order
provides what due process requires, such as notice and a
hearing prior to restricting an individual’s ability to travel.
Indeed, the Government does not contend that the Executive
Order provides for such process. Rather, in addition to the
arguments addressed in other parts of this opinion, the
Government argues that most or all of the individuals
affected by the Executive Order have no rights under the Due
Process Clause.

And while I’ve seen a bunch of people (mainly on Twitter) telling me that there’s no due process issue because non-US citizens have no Constitutional rights, the court reminds them that they’re wrong:

The procedural protections provided by the Fifth
Amendment’s Due Process Clause are not limited to
citizens. Rather, they “appl[y] to all ‘persons’ within the
United States, including aliens,” regardless of “whether their
presence here is lawful, unlawful, temporary, or permanent.”
Zadvydas v. Davis, 533 U.S. 678, 693 (2001). These rights
also apply to certain aliens attempting to reenter the United
States after travelling abroad. Landon v. Plasencia, 459 U.S.
21, 33-34 (1982). The Government has provided no
affirmative argument showing that the States’ procedural
due process claims fail as to these categories of aliens. For
example, the Government has failed to establish that lawful
permanent residents have no due process rights when
seeking to re-enter the United States. See id. (“[T]he
returning resident alien is entitled as a matter of due process
to a hearing on the charges underlying any attempt to
exclude him.” (quoting Rosenberg v. Fleuti, 374 U.S. 449,
460 (1963))). Nor has the Government established that the
Executive Order provides lawful permanent residents with
constitutionally sufficient process to challenge their denial
of re-entry. See id. at 35 (“[T]he courts must evaluate the
particular circumstances and determine what procedures
would satisfy the minimum requirements of due process on
the re-entry of a permanent resident alien.”).

Separately, the court notes that the federal government’s own claims are not trustworthy — specifically the rapidly-changing claims about whether or not greencard holders are covered by the exec order:

At this point, however, we
cannot rely upon the Government’s contention that the
Executive Order no longer applies to lawful permanent
residents. The Government has offered no authority
establishing that the White House counsel is empowered to
issue an amended order superseding the Executive Order signed by the President and now challenged by the States,
and that proposition seems unlikely.

Nor has the Government established that the White
House counsel’s interpretation of the Executive Order is
binding on all executive branch officials responsible for
enforcing the Executive Order. TheWhite House counsel is
not the President, and he is not known to be in the chain of
command for any of the Executive Departments. Moreover,
in light of the Government’s shifting interpretations of the
Executive Order, we cannot say that the current
interpretation by White House counsel, even if authoritative
and binding, will persist past the immediate stage of these
proceedings.

The court also rejects the argument from the DOJ that a more limited TRO could be used instead, such as one just focusing on previously admitted aliens. No go:

First, we decline to limit the scope of the TRO to lawful
permanent residents and the additional category more
recently suggested by the Government, in its reply
memorandum, “previously admitted aliens who are
temporarily abroad now or who wish to travel and return to
the United States in the future.” That limitation on its face
omits aliens who are in the United States unlawfully, and
those individuals have due process rights as well. Zadvydas,
533 U.S. at 693. That would also omit claims by citizens
who have an interest in specific non-citizens’ ability to travel
to the United States….
There might be persons covered by the TRO who do not
have viable due process claims, but the Government’s
proposed revision leaves out at least some who do.

The court also refuses to restrict the TRO so that it doesn’t apply nationwide, basically saying the government failed to explain why it should:

Second, we decline to limit the geographic scope of the
TRO. The Fifth Circuit has held that such a fragmented
immigration policy would run afoul of the constitutional and
statutory requirement for uniform immigration law and
policy…. At this stage of the litigation, we do not need to and
do not reach such a legal conclusion for ourselves, but we
cannot say that the Government has established that a
contrary view is likely to prevail. Moreover, even if limiting
the geographic scope of the injunction would be desirable,
the Government has not proposed a workable alternative
formof the TRO that accounts for the nation’s multiple ports
of entry and interconnected transit system and that would
protect the proprietary interests of the States at issue here
while nevertheless applying only within the States’ borders.

The court then notes that the federal government failed to convince the court that it has any “likelihood of success” in prevailing in support of the executive order, though it’s open to changing its mind at a later date, when more fully briefed (i.e., when things come back on appeal down the road).

Finally, there’s the question of the “balance of hardships and the public interest” and again the court notes that the DOJ failed to show any evidence of real harm in blocking the executive order, because the DOJ has no actual evidence to support the reasons for the order in the first place. And, again, just screaming “NATIONAL SECURITY” is no excuse:

The Government has not shown that a stay is necessary
to avoid irreparable injury. Nken, 556 U.S. at 434. Although
we agree that “the Government’s interest in combating
terrorism is an urgent objective of the highest order,” Holder
v. Humanitarian Law Project, 561 U.S. 1, 28 (2010), the
Government has done little more than reiterate that fact.
Despite the district court’s and our own repeated invitations
to explain the urgent need for the Executive Order to be
placed immediately into effect, the Government submitted
no evidence to rebut the States’ argument that the district
court’s order merely returned the nation temporarily to the
position it has occupied for many previous years.

The Government has pointed to no evidence that any
alien from any of the countries named in the Order has
perpetrated a terrorist attack in the United States. Rather
than present evidence to explain the need for the Executive
Order, the Government has taken the position that we must
not review its decision at all. We disagree, as explained
above.

In a footnote on that, the court calls bullshit on the idea that there’s some super secret info that only the President can see that shows why this ban is necessary, noting that the federal government regularly shares confidential information with judges under seal or in camera to avoid it being seen by others.

Meanwhile, the court notes that the plaintiff states have shown pretty strong evidence of harm:

By contrast, the States have offered ample evidence that
if the Executive Order were reinstated even temporarily, it
would substantially injure the States and multiple “other
parties interested in the proceeding.” …
When the Executive Order was in effect, the States contend
that the travel prohibitions harmed the States’ university
employees and students, separated families, and stranded the
States’ residents abroad. These are substantial injuries and
even irreparable harms.

And, finally the court notes that the public interest simply does not warrant a stay.

Again, this is just the beginning of a long process, but as an early victory it’s a big one. The court could have punted and did not. And in the meantime, our somewhat confused President is angry and doesn’t seem to realize he’s already in court over this (and losing, badly):

Of course, if that were true, it would help to have the federal government actually lay out some evidence to support that. What the 9th circuit pretty clearly said here is “we’ve seen none whatsoever.”



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Comments on “Court Unanimously Keeps Lower Court's Injunction Against Trump's Immigration Order In Place”

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237 Comments
Anonymoussays:

Re: Another important point

“This is important in that it underlines that his words now matter in a legal sense.”

Would you be willing to expand upon this terrible ignorant comment? A presidents words “on twitter” are of no more “legal” import than a crack addict. You might be confusing a Judges ability to remain “objective” in future cases. For a president, what DOES matter is how he exercises his power and the words placed in the “official” language supplied with the ban. So unless Trump put his tweets in there, they are really inadmissible.

The judges just admitted to corrupting their jurisprudence over politics. If Congress was not currently worthless they would abolish the entire court for that admission and replace it or just leave it dead.

Not only that, the 9th is one of the most overturned courts in history. I would not consider this a closed case in the least. I would be shocked if it did not continue to climb the court ladder.

Mike Masnicksays:

Re: Re: Another important point

Would you be willing to expand upon this terrible ignorant comment? A presidents words "on twitter" are of no more "legal" import than a crack addict.

Um. It would appear you did not read the decision. It clearly notes that the intent of the ban matters in determining whether or not it was legal, and suggests that Trump’s tweets and statements reflect the intent. This isn’t complicated.

The judges just admitted to corrupting their jurisprudence over politics

Where and how? The ruling is detailed, careful and fairly comprehensive (much more so than I expected it to be). The reasons are laid out. The precedents are clearly cited.

You cite nothing to support your claim that this is politics (and note that 2 of the 4 judges who agreed were appointed by Bush, so the idea that this is politics is silly).

Not only that, the 9th is one of the most overturned courts in history. I would not consider this a closed case in the least. I would be shocked if it did not continue to climb the court ladder.

Multiple times in the post I noted that this is early and the case is far from over. Why do you pretend anyone said it was over?

Separately, why I know that Fox news was trumpeting that the 9th is the "most overturned court" that, by itself, is misleading and actually wrong. The 9th is the largest of the appeals courts, has the most judges of any of the appeals courts and hears more cases than any of the appeals courts (the 5th Circuit is a distant second). The 9th Circuit (along with the 2nd circuit) also tend to get a lot of "important" cases for a variety of reasons, including the massive population covered by the 9th.

Separately, the "most overturned" is meaningless, because the SCOTUS hears so few cases from most appeals courts. Specifically, from 1999 to 2008 the Supreme Court reviewed 0.15% of 9th Circuit cases. That’s not 15%. That 0.15. So the reality is that the Supreme Court does not review well over 99% of 9th Circuit orders.

Also, FACTUALLY it is wrong that the 9th is the most overturned (at least according to the most recent ABA stats I could find). That honor goes to our least favorite appeals court around here: the Federal Circuit.

So, maybe lay off the Fox News a bit (or whatever news source repeated this wrong info) and admit that maybe you don’t know what you’re talking about.

Anonymoussays:

Re: Re: Re: Another important point

um, and do we simply elide that the states had no standing ? ? ? working on behalf of third parties (coughmicrosoftcough) where the complainant has no direct ‘harm’ is supposedly a big no-no with the supremes, but not in this case ? ? ?
but since the decision went the way you want it, forget about the rule of law, just get the result you want, richtig ? ? ?
people thinking thus prove THEY HAVE NO PRINCIPLES…

killthelawyerssays:

Re: Re: Re: Re: Another important point

Standing was addressed and the court of appeals found that the state’s own proprietary interest (through its various universities, in particular), were harmed, thus giving the state standing to bring the case.

You would know this if you read through the opinion. It’s 29 pages at a very low density. I encourage – actually, I beg – you to read it.

Stocktonsays:

Impeach Activist Judges

.

“Standing was addressed…”

But did NOT at all follow established law for determining “standing” or for the specific merits of the case.
It was purely a ‘political’ exercise under color/cover of judicial authority.

The 9th Appeals Court & Seattle District Court activist judges should all be immediately impeached by the U.S. House of Representatives and fired.

The entire Federal District/Appeals Court circus… was outrageously political & illegal.
The plaintiffs had NO standing whatsoever. And NO Federal District Judge has authority to issue a “Nationwide” restraining order (TRO) … on any case or issue — a judge’s legal authority is strictly limited to his formal jurisdiction only.

Impeachment & Dismissal is the necessary cure for this blatant judicial activism.
Trump, Congress, and SCOTUS should quickly suppress this judicial corruption… or it will continue to cripple the rule of law.

Stocktonsays:

Impeach Activist Judges

“Standing” legally means a plaintiff alleges and can probably prove that a specific party (defendant) caused that specific plaintiff a specific injury… distinct from all others not formally involved in this specific court case.

The plaintiffs in this Seattle Federal District Court case were NOT people whose U.S. entry had been barred by Trump?s order but rather the governments of two states… each “claiming” to sue “in behalf” of people/entities resident (or “possible” future residents) in those states.
Thus, the actual plaintiffs in the Seattle Federal court had suffered NO specific injury themselves — and therefore had NO legal standing.

The Seattle Federal court judge should have dismissed the case as soon as it was filed — because of long-standing SCOTUS policy that bars federal litigation alleging harm to another… that means no middle-man plaintiffs get standing.
But that judge acted politically, instead. The 9th Appeals Courts should also have seen the obvious lack of standing — but chose to act politically.

The requirement for standing prevents paralysis of government. If anyone could sue the government for anything and induce some federal judge to second-guess Congress or a President on every policy issue imaginable–that would politicize the courts into unelected super-legislatures.

There are over 600 Federal District Judges — imagine the chaos if each one could impose his own personal opinions of government policy issues… upon the entire nation.

killthelawyerssays:

Re: Impeach Activist Judges

Well, you tried. Third-party standing is not barred; in fact, it has been refined and approved by the Supreme Court. See, e.g., Friends of the Earth, Inc. et al. v. Laidlaw Environmental Services, Inc., 528 U.S. 167 (2000)(” An association has standing to bring suit on behalf of its members when its members would have standing to sue in their own right, the interests at stake are germane to the organization’s purpose, and neither the claim asserted nor the relief requested requires individual members’ participation in the lawsuit.”); Runyun v. McCrary, 427 U.S. 160, 175 & n.3 (1976) (?It is clear that the schools have standing to assert these arguments on behalf of their patrons.?); Pierce v. Soc?y of Sisters, 268 U.S> 510, 536 (1925) (allowing a school to assert the ?right of parents to choose schools where their children will receive appropriate mental and religion training [and] the right of the child to influence the parents? choice of school:); Singleton v. Wulff, 482 U.S. 106, 114-16 (1976) (explaining that third-party standing is allowed when the third party?s interests are ?inextricably bound up with the activity the litigating wishes to pursue?; when the litigant is ?fully, or very nearly, as effective a proponent of the right? as the third party; or when the third party is less able to assert her own rights); Craig v. Boren, 429 U.S. 190, 195 (1976) (?[Vendors] have been uniformly permitted to resist efforts at restricting their operations by acting as advocates of the rights of the third parties who seek access to their market or function.?); Griswold v. Connecticut, 381 U.S. 479 (1965) (holding that doctors may assert the rights of their patients).

Those are just the cases cited in the opinion that are from the Supreme Court. I’m glad you’re interested in the case, but you should probably start by reading the case, and then checking the citations to see what other courts, and especially the Supreme Court, have said.

Stocktonsays:

Re: Impeach Activist Judges

General prohibition of Third-Party Plaintiffs is in fact the current & longstanding policy of SCOTUS … but there are some exceptions (e.g., Class-Actions)… and lower Federal judges sometimes go-their-own-way without consequence.

The state governments of Washington and Minnesota do NOT legally qualify as “Associations” or “Organizations”, representing their “members’.

The 9th Court of Appeals casually (and politically) dismissed the whole critical issue of ‘standing’ … by asserting that the unproven “claims” of Third-Party-Standing by Washington/Minnesota were sufficient basis for the Federal courts to formally restrain the Federal Government nationwide.

killthelawyerssays:

Re: Re: Impeach Activist Judges

Sure, there is a general prohibition of third-party plaintiffs. Had you bothered to read through the case citations I gave you above, you would see there are limited circumstances in which the Supreme Court has specifically carved out exceptions. The general test is that third-party standing is allowed when the third party?s interests are ?inextricably bound up with the activity the litigating wishes to pursue?; when the litigant is ?fully, or very nearly, as effective a proponent of the right? as the third party; or when the third party is less able to assert her own rights. . . .” Singleton v. Wulff, 482 U.S. 106, 114-16 (1976). To clarify, that, along with every single case I cited above, is a United States Supreme Court opinion.

Among the list of third-parties which may bring an action on behalf of another are schools, which may act on behalf of their students and in their own proprietary interest. See Runyun v. McCrary, 427 U.S. 160, 175 & n.3 (1976) (?It is clear that the schools have standing to assert these arguments on behalf of their patrons.?) Again, that is a United States Supreme Court decision.

Now, to connect the dots for you, I will quote the 9th Circuit’s opinion, because I feel that arguing with me is probably the only way you will ever read even a sentence of the court’s opinion.

>The States argue that the Executive Order causes a
concrete and particularized injury to their public universities, which the parties do not dispute are branches of the States under state law. See, e.g., Hontz v. State, 714 P.2d 1176, 1180 (Wash. 1986) (en banc); Univ. of Minn. v. Raygor, 620 N.W.2d 680, 683 (Minn. 2001).

The States begin by particularizing the harm to universities which are organs of the state.

> Specifically, the States allege that the teaching and
research missions of their universities are harmed by the
Executive Order?s effect on their faculty and students who are nationals of the seven affected countries. These students and faculty cannot travel for research, academic
collaboration, or for personal reasons, and their families abroad cannot visit. Some have been stranded outside the country, unable to return to the universities at all. The schools cannot consider attractive student candidates and cannot hire faculty from the seven affected countries, which they have done in the past.

The Universities are being directly harmed on their own, but also are in the position where members of the University and those closely associated with it, or who conduct business with the university, are being harmed.

***

> Most relevant for our purposes, schools have been
permitted to assert the rights of their students. . . . (I’m skipping citations here that you probably won’t read, but feel free to look them up, as well.) As in those cases, the interests of the States? universities here are aligned with their students. The students? educational success is ?inextricably bound up? in the universities? capacity to teach them. Singleton, 428 U.S. at 115. And the universities? reputations depend on the success of their professors? research. Thus, as the operators of state universities, the States may assert not only their own rights to the extent affected by the Executive Order but may also assert the rights of their students and faculty members.

Here, the court begins applying the facts to the test set in Singleton, which I have given for you above. Here, the court is explaining that the interests of the universities are inseparably related to those of their faculty, researchers, and students.

>We therefore conclude that the States have alleged harms
to their proprietary interests traceable to the Executive
Order. The necessary connection can be drawn in at most
two logical steps: (1) the Executive Order prevents nationals of seven countries from entering Washington and
Minnesota; (2) as a result, some of these people will not
enter state universities, some will not join those universities as faculty, some will be prevented from performing research, and some will not be permitted to return if they leave. And we have no difficulty concluding that the States? injuries would be redressed if they could obtain the relief they ask for: a declaration that the Executive Order violates the
Constitution and an injunction barring its enforcement. The Government does not argue otherwise. We therefore hold that the States have standing.

Finally, the Court completes the analysis. What harm occurs? The university will be less-able to carry out its own functions and its members may be fully-prevented from performing tasks which they have previously contracted to do. Thus, there is a particularized injury, and a party who is in a position to request relief.

Do I think this will convince you? No, because you’re arguing with vigor about a topic you fundamentally misunderstand and refuse to learn about. if you were interested in learning, you would have read any of the half dozen cases I cited above, or even a summary, and reconsidered your position. However, my hope is that something along the way will spark your intellectual curiosity to learn about the law.

Anonymoussays:

Re: Re: Impeach Activist Judges

“The States argue that the Executive Order violates the
Establishment and Equal Protection Clauses because it was
intended to disfavor Muslims. In support of this argument,
the States have offered evidence of numerous statements by
the President about his intent to implement a ?Muslim ban?
as well as evidence they claim suggests that the Executive
Order was intended to be that ban,”

This is the likely part at play here. Politicians often talk to citizens in less than quality language, and it is pretty clear that Trumps public remarks on the subject are part of his determination that they are security risks. A determination that he is not alone with either. To construe these remarks as being something dishonest by the states is a bit disingenuous. While I do not hold judges responsible for the words brought on by the plaintiff or the defense, but it is a corruption of jurisprudence if the Judges ‘did indeed’ take these statements into account as the state presented them.

The OP of this thread implied that they did, and even seems to be supportive in it leading to the debate.

JEDIDIAHsays:

Re: Re: Re: Impeach Activist Judges

The idea that this kind of “intent” can be used to decide a case is an judicial expansion with interesting non-trivial consequences. It’s also something that’s been contradicted frequently by courts claiming that a law means something entirely other than what it’s crafters intended. The redefinition of the Obamacare personal mandate is a good recent example.

Anonymoussays:

Re: Re: Re: Re: Another important point

So principles are above facts? Is that it?

The judges are arguing mostly based on the constitution and earlier rulings on the extend of these rights. So if you want your principles lived out, you need to change the most basic of laws, the constitution. Thankfully a president cannot change that law through a decree. Imagine the potential ramifications if he could!

dddimwrongsays:

Re: Re: Re: Another important point

Unfortunately for the 9th circuit the standard is not whether anyone has been harmed. The court has been intellectually dishonest because anytime a travel ban is imposed by the executive branch there will always be people who are harmed by the travel restriction. The court is therefore substituting its own authority in place of the executive branch to make decisions about whether non-citizens can travel from certain countries to the US. The court does not have access to the intelligence to know whether that is in the best interests of the US. That discretion to restrict travel from various parts of the world to the US is at the sole discretion of the Executive branch. I am quite sure that the US Supreme court will over-rule the 9th circuit as the US Supreme Court doesn’t want to micromanage immigration to the US. Be aware that if the Courts take away this administration’s ability to control immigration this administration will dump it into the courts hands and make them responsible for any terrorist acts that happen.

We may never find out, but what if the intelligence services had wind of a plot to do harm and we knew the terrorists were going to come in from one of 2 countries. So to keep from tipping our hand and to just cover a lot more bases the executive branch enacts a TEMPORARY travel ban from the 7 countries named as hotbeds of terrorism by John Kerry and Obama. What if the target had something to do with the super bowl? What I’m suggesting is very possible. It is not unreasonable to suggest that out of an abundance of caution the administration just said screw it, we ‘ll take a temporary pause on letting people we are not sure about in until we can get better vetting procedures in place.

What I’d like to see is the administration say to the states that sued, “hey if you want to second guess the executive branch’s power to control immigration into this country, fine have at it.” Henceforth all non-citizens flying into the US from these 7 countries must now fly in via one of four airports only, Seattle, Portland, San Francisco and LA. And then I’d let the states make the immigration decisions and withdraw federal immigration officials from those 3 airports. I’d love to see them squirm.

And just for the record the lamestream media has been totally controlled by Steve Bannon again. Steve knew that the immigration order would cause lawsuits from the liberals and he knew this would become the lead story for days of the news cycle obscuring the crying of the liberal senators like Chuck and therefore help get more of the cabinet confirmed. So instead of the lead story being the “bad people” about to be confirmed the lead story is about how the order was upsetting a few thousand people. And now Sessions and DeVos have been confirmed. The liberals and the lamestream media just don’t realize how well they are being played by Steve Bannon.

killthelawyerssays:

Re: Re: Re: Re: Another important point

Here’s the thing, if the government had super secret intelligence information, it is more than free to submit briefs for in camera review which contain that information. That they affirmatively declined to do so, nor were willing to giving even the vaguest of descriptions, is why the court was not willing to give deference. Further, when those who have claimed responsibility for the drafting of the EO repeatedly claim it was done with the intent of violating the establishment clause, the court will be even less likely to extend deference.

I know this because I read the opinion. I encourage you to do the same.

Anonymoussays:

Re: Re: Re: Another important point

I swear Mike, you are going whacko lefty… what is the deal? Get your crap together.

“Where and how? The ruling is detailed, careful and fairly comprehensive (much more so than I expected it to be). The reasons are laid out. The precedents are clearly cited.”

IF, the judges considered anything said, tweeted, or typed that is OUTSIDE of the order to ban then that is the proof. So did the judges admit that they also took into account… the twitter or any other public but NOT LEGALLY BINDING media of Trump in their decision? Yes or No?

“Why do you pretend anyone said it was over?”

They made no such claims, they just said they would be surprised as a matter of musing… try to avoid taking things out of context please! Your job should already intimate to you the need to not do that!

“(and note that 2 of the 4 judges who agreed were appointed by Bush, so the idea that this is politics is silly)”

That may matter to YOU proving that this is more political for you than not. I don’t care who appointed a judge, they should be able to perform their duties with integrity regardless.

“Also, FACTUALLY it is wrong that the 9th is the most overturned”

I am going to ignore your anti-Fox diatribe, I don’t watch them so I have no basis to counter your claims and neither do I care too as TD is likely every bit as biases and screwed up as Fox… just like gasp! Every media and news outlet that exists. The whole… they are biased but I am not gambit is tiring and telling of your cognitive dissonance.

the words “one of the most” != “the most”. Try to steer clear of the cliff, taking things out of context or construing them to mean something they do not will only make you look like a looney political hack.

Mike Masnicksays:

Re: Re: Re: Re: Another important point

I swear Mike, you are going whacko lefty… what is the deal? Get your crap together.

I’m doing no such thing. Here’s a hint: just because someone’s analysis disagrees with your own, it doesn’t make them a “leftist” or “right wing” or anything like that. Perhaps they just disagree with you. I don’t know why you’re so obsessively focused with this false “left/right” spectrum anyway. I’ve pointed out in the past how dumb it is and you can’t let it go. Why is that?

IF, the judges considered anything said, tweeted, or typed that is OUTSIDE of the order to ban then that is the proof. So did the judges admit that they also took into account… the twitter or any other public but NOT LEGALLY BINDING media of Trump in their decision? Yes or No?

What? Part of the court’s job is to determine the intent of the executive order, and therefore it is entirely reasonable to consider the statements of those associated with the executive order. There is longstanding precedent for this (also cited in the ruling). You seem to think that the judicial system works very differently than it does.

They made no such claims, they just said they would be surprised as a matter of musing… try to avoid taking things out of context please! Your job should already intimate to you the need to not do that!

Actually, that’s exactly what was claimed. The commenter said “I would not consider this case closed.” And I responded asking where I had said it was closed, because I had said exactly the opposite in my post. Now you claim that they didn’t say the very thing I responded to?

Dude. Really? You’re the one taking things out of context.

That may matter to YOU proving that this is more political for you than not. I don’t care who appointed a judge, they should be able to perform their duties with integrity regardless.

Holy shit. What the serious fuck is wrong with you? I didn’t say it mattered. I was responding to the spurious claim that the judges were “political” by pointing to the evidence that they were not. I agree that it doesn’t matter who appointed them because they should perform their job. And the indicators are that THEY DID THAT.

Try to steer clear of the cliff, taking things out of context or construing them to mean something they do not will only make you look like a looney political hack.

Hilarious since your entire comment here was taking my words out of context. Don’t be that guy.

Anonymoussays:

Re: Re: Re: Another important point

Keep it up, just another “label” to add to the pile.

For you guys if you see something you disagree with you call it…
racist, xeno or homophobic, misogynist, alt-facts, and now fake news.

If you have not learned yet, the constant watering down of terms will relegate them to meaninglessness, thereby defeating the entire purpose of them.

I am independent, but it is pretty hard to miss the perpetual outrage you guys have going, it is very self destructive and you guys need to cut it out before someone uses your own rhetoric against you as justification for marginalizing you.

sorrykbsays:

Re: Re: Re: Another important point

I think it’s more trying to wear us down with repeated wall-of-text stupidity. While you’re busing crafting reasonable replies and arguments, they’re just mindlessly pasting nonsense like the good little drones they are.

It’s no way to hold a debate, but then that’s not really what they’re looking for.

Anonymoussays:

and also a pre-emption towards the likelihood of our thin skinned President picking directly on one of the three as somehow being responsible

Not to worry. I’m sure if President Trump runs out of an adequate supply of spleen to vent, he can borrow a cup from Mr. Bannon.

Let us consider the 5th here for a minute:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Ah. I see. The trouble is that anyone not a citizen or someone otherwise "desirable" is not a "person", so there isn’t a violation of the 5th here. Move along, nothing to see.

Anonymoussays:

Don't why even have even customs checkpoints. Every person in the world has a right to come here and stay.

From that decision, Immigration and Customs are completely unconstitutional. Why, if the Canadians and Mexicans want to pour across without limits, it’s their right.

I’m no Trump fan, but border control is essential to my liberty and yours too.

This won’t stand. It’s just lawyers being lawyers.

Anonymoussays:

Re: Re: Don't why even have even customs checkpoints. Every person in the world has a right to come here and stay.

Well, it says: ?appl[y] to all ?persons? within the United States, including aliens,? regardless of ?whether their presence here is lawful, unlawful, temporary, or permanent.? — So logically, that is to lawyers, it includes invading armies!

Re: Re: Re: Don't why even have even customs checkpoints. Every person in the world has a right to come here and stay.

?appl[y] to all ?persons? within the United States, including aliens,? regardless of ?whether their presence here is lawful, unlawful, temporary, or permanent.?

I have a hunch that if it actually said what you claim it says, you wouldn’t be pulling sentence fragments out of context.

Anonymoussays:

Re: Re: Re: Re: Don't why even have even customs checkpoints. Every person in the world has a right to come here and stay.

No he is right.

The 5th starts with “No Person”…

Unfortunately the Constitutions starts with a preamble that states that these liberties are secured unto ourselves NOT OTHERS. This means that any application to non-citizens is a complete fabrication and unsupported by the Constitution. But it is hardly the first time the Constitution was shit upon now is it?

In the Context of the 5th or any others, if they apply to all, they applies to them regardless of location on Earth or Pluto, and that means that Customs cannot search, halt, or question anyone for any reason without a warrant or at least probable cause to start an application. Even though they totally do anyways and the police can shoot you in the face just for lulz too.

Dingledore the Mildly Uncomfortable When Seatedsays:

Re: Re: Re: Re: Re: Don't why even have even customs checkpoints. Every person in the world has a right to come here and stay.

Unfortunately the Constitutions starts with a preamble that states that these liberties are secured unto ourselves NOT OTHERS.

Please would you identify which US Constitution you are read that says this? I ask, because the version of the Constitution held by the US government starts with a preamble that states…
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

So the constitution preamble is actually pretty clear. The US Constitution is a set of rules binding to the US People. So the US People must live by these rules. At no point in the preamble does it state that the US People must live by these rules except if the rules affect people who aren’t US People.

That’d be like the Bible or Quran preaching “Love thy neighbour (except if your neighbour isn’t from your village)”.

Richardsays:

Re: Re: Re: Re: Re: Re: Don't why even have even customs checkpoints. Every person in the world has a right to come here and stay.

That’d be like the Bible or Quran preaching "Love thy neighbour (except if your neighbour isn’t from your village)".

"Muhammad is the messenger of Allah. And those with him are hard against the disbelievers and merciful among themselves."

Koran 48:29

Roger Strongsays:

Re: Re: Re: Re: Re: Re: Re: Don't why even have even customs checkpoints. Every person in the world has a right to come here and stay.

And? The Christian Bible has plenty of similar quotes.

Deuteronomy 20:16-18: But of the cities of these peoples which the Lord your God gives you as an inheritance, you shall let nothing that breathes remain alive, but you shall utterly destroy them: the Hittite and the Amorite and the Canaanite and the Perizzite and the Hivite and the Jebusite, just as the Lord your God has commanded you, lest they teach you to do according to all their abominations which they have done for their gods, and you sin against the Lord your God.

Richardsays:

Re: Re: Re: Re: Re: Re: Re: Re: Don't why even have even customs checkpoints. Every person in the world has a right to come here and stay.

And? The Christian Bible has plenty of similar quotes.

But that is the old testament and Christ (and many later commentators such as St Isaac the Syrian have expressly overruled any interpretation that suggests violence).

The Koran however (unlike the Bible) is supposed to be the definitive word of God precisely dictated.

You won’t find such a quote in the New Testament and you will plenty that contradicts it (even in Exodus it says "vex not the Stranger that is in your midst.)

Now go away and find a commandment to "love your enemies" in the Koran.

Roger Strongsays:

Re: Re: Re: Re: Re: Re: Re: Re: Re: Don't why even have even customs checkpoints. Every person in the world has a right to come here and stay.

The Old Testament is still part of Christianity. It’s rules and commandments are still widely quoted by Christians to justify both the good and bad.

Many of those commandments are also considered to be dictated directly from God. Those given to Moses for example; some beyond the first ten can seem rather barbaric to modern Christians.

As for "love your enemies" commandments in the Koran, there are plenty.

Seriously, where are you even getting your ideas?

Richardsays:

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Don't why even have even customs checkpoints. Every person in the world has a right to come here and stay.

As for "love your enemies" commandments in the Koran, there are plenty.

Well I followed your link and "plenty" is a bit of an exaggeration.

There are one or two BUT there are many that say the opposite.

And Islamic commentators on your own link specifically disowned the idea of "turning the other cheek".

SO it comes down to how contradictions are handled:

In both religions there are contradictions between texts.

In both religions these are conventionally resolved by giving priority to later verses.

The texts you quote are early ones (remember the Kpran is not arranged chronologically).

Unfortunately the later ones are generally much less friendly and are conventionally regarded as cancelling the early ones, at least when muslims are in a position of power.

Seriously, where are you even getting your ideas?

Studying the primary sources and early history (7th and 8th centuries).

Roger Strongsays:

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Don't why even have even customs checkpoints. Every person in the world has a right to come here and stay.

Well I followed your link and “plenty” is a bit of an exaggeration.

You challenged me to find such a commandment in the Koran, and I gave you two. The article has a link to more.

> There are one or two BUT there are many that say the opposite.

The same is true of the Bible.

> at least when muslims are in a position of power.

The same is true of Christians. Keep studying that history.

Richardsays:

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Don't why even have even customs checkpoints. Every person in the world has a right to come here and stay.

You challenged me to find such a commandment in the Koran, and I gave you two. The article has a link to more.

Really only one and a half – and the link to more didn’t reveal anything new.

The same is true of the Bible.

No it isn’t. Look here for a torough analysis:
https://wikiislam.net/wiki/Muslim_Statistics_-_Scripture
Note this site is maintained by the ex muslims of North America- so they know their stuff – but they are not hate motivated – eg here is their policy statement:

http://www.exmna.org/policy-paper-no-bigotry-no-apology/

The same is true of Christians. Keep studying that history.

Not the same at all. IN islam the interpretation of the texts changes. This does not happen in Christianity. It is true that the behaviour of Christians deteriorated when the Roman Empire adopted Christianity – but the bad behaviour came from the secular authorities and was frequently opposed by the church.

Also it took 300 years for this problem to arise in Christianity. It happened within 15 years in Islam.

Anonymoussays:

Re: Christ ... expressly overruled any interpretation that suggests violence

Jesus says that most people will go to hell. (Matthew 7:13-14)

Jesus says that he has come to destroy families by making family members hate each other. He has “come not to send peace, but a sword.” (Matthew 10:34-36)

Any city that doesn’t “receive” the followers of Jesus will be destroyed in a manner even more savage than that of Sodom and Gomorrah. (Mark 6:11)

Jesus says that entire cities will be violently destroyed and the inhabitants “thrust down to hell” for not “receiving” his disciples. (Luke 10:10-15)

God is like a slave-owner who beats his slaves “with many stripes.” (Luke 12:46-47)

Jesus calls his opponents (the Jews) the sons of the devil. (John 8:44)

Those who do not believe in Jesus will be cast into a fire to be burned. (John 15:6)

The first Christian book burning occurs when Paul’s converts at Ephesus burn 50,000 silver pieces’ worth of books. (A silver piece was worth about a day’s wage.) (Acts 19:19)

With his usual intolerance, Paul condemns homosexuals (including lesbians). This is the only clear reference to lesbians in the Bible. (Romans 1:26-28)

etc, etc

http://skepticsannotatedbible.com/int/long.html

Richardsays:

Re: Re: Christ ... expressly overruled any interpretation that suggests violence

Jesus says that most people will go to hell. (Matthew 7:13-14)

Far be it from me to interpret the New Testament for you – I’ll leave that to St Isaac the Syrian.

http://www.wacom2017.org/sites/wacom2017.org/IMG/pdf/Bishop_Hilarion_Alfeyev.pdf

"Even worse is the opinion that God allows people to lead a sinful life on earth in order to punish them eternally after death. This is a blasphemous and perverted understanding of God, a calumny of God: ?If someone says that He has put up with them here on earth in order that His patience may be known with the idea that He would punish them mercilessly, such a person thinks in an unspeakably blasphemous way about God, due to his infantile way of thinking: he is removing from God His kindness,
goodness and compassion, all the things because of which He truly bears with sinners and wicked men. Such a person is attributing to God enslavement to passion, supposing that He has not consented to their being chastised here, seeing that He has prepared them for a much greater misfortune, in exchange for a short
lived patience. Not only does such a person fail to attribute something praiseworthy to God, but he also calumniates Him?"

Jesus says that he has come to destroy families by making family members hate each other. He has "come not to send peace, but a sword.

He was predicting the reaction of opponents not advocating actions for hs followers – cf what happened when Jesus was arrested.

Any city…to be burned. (John 15:6)

See my response above these are all issues along the same lines. They are not commandments for Christians to act in violent ways.

As for the "book burning" well – not all books are necessarily good – like any technology they can be used for good and evil.

As for your last quotes – well they are a general condemnation of immorality – not specifically directed at any particular group.

It is true that the bible specifies a rather restricted form of sexual morality (which just about everyone fails on) – but then again remember the story of Jesus with the woman caught in adultery – vs the incident with the money changers – rather shows where His priorities lay.

Dingledore the Mildly Uncomfortable When Seatedsays:

Re: Re: Re: Don't why even have even customs checkpoints. Every person in the world has a right to come here and stay.

The Constitution, as a document, is written, amongst other things, to guide the country as to how it will treat people.

Due process is a fundamental part of that. So it doesn’t matter if other countries ignore due process – the Constitution says the the US will not. Doesn’t matter if it’s illegal aliens or prisoners of war.

It’s disturbing that some people don’t understand that.

JEDIDIAHsays:

Re: Don't why even have even customs checkpoints. Every person in the world has a right to come here and stay.

No. You just don’t understand immigration law where non-citizens aren’t defined as persons. Because you aren’t an immigrant or foreign worker or immigration attorney, this reality is new and shocking to you.

Illegal aliens don’t get due process. They are governed exclusively by the executive and immigration “judges” apply admin law to them.

A green card is not a gaurantee of re-entry and you can get deported for any number of reasons including being careless with your paperwork.

Mike Masnicksays:

Re: Re: Don't why even have even customs checkpoints. Every person in the world has a right to come here and stay.

Illegal aliens don’t get due process.

This is 100% false. As cited in THIS VERY DECISION that apparently you did not read, despite falsely pretending to be an expert on the subject.

Seriously: Fox News is no place to get a legal education.

Anonymoussays:

Re: Re: Don't why even have even customs checkpoints. Every person in the world has a right to come here and stay.

>> OnTheWaterfront, 9 Feb 2017 @ 4:43pm

>>> English sir. Do you speak it?

Maybe I left out a word?

You make odd implicitly languagist besides sexist objection.

But how about sticking to the topic?

Re: Re: Re: Don't why even have even customs checkpoints. Every person in the world has a right to come here and stay.

But how about sticking to the topic?

We would, if we could figure out what the hell you were talking about.

"You make odd implicitly languagist besides sexist objection"? Well, okay, most of those are words, but you’ve arranged them in an order that doesn’t really match any kind of coherent sentence structure.

Dingledore the Mildly Uncomfortable When Seatedsays:

Re: Re: Don't why even have even customs checkpoints. Every person in the world has a right to come here and stay.

Surely the US was built on the idea that anyone has the right to apply to live there?

“Give me your tired, your poor, your huddled masses yearning to breathe free, the wretched refuse of your teeming shore.”

The Wanderersays:

Re: Re: Re: Don't why even have even customs checkpoints. Every person in the world has a right to come here and stay.

Sadly, the Trump brigade (and I wish I had a better term for the group of people I’m thinking of than that, I just haven’t been able to think of one) have already been pointing to that as support for the idea of excluding some people.

Specifically, I’ve seen it argued that the qualifier “yearning to breathe free” means that only people who come here because they want freedom are covered by that exhortation – usually with the understanding, and often the explanation, that people who want to import the culture of the place they’re coming from rather than adopting our culture (“of freedom”) aren’t coming here because they want freedom.

The people who argue this usually seem to be the same people raising the specter of sharia law being imposed in (parts of) the USA, and that gets pointed to as an example of importing restrictive native culture rather than adopting freedom-loving American culture.

Roger Strongsays:

Re: Don't why even have even customs checkpoints. Every person in the world has a right to come here and stay.

Oh, spare us.

Before Trump’s EO, the world did not have a right to come and stay.

Before Trump’s EO, Immigration and Customs were completely in line with the constitution.

Before Trump’s EO, Canadians and Mexicans had no right to pour across without limits.

Before Trump’s EO, border control was fully in place.

NONE OF THIS HAS CHANGED SINCE. Things are exactly as they were before Trump’s snake-oil cure.

Meow Mixsays:

Re: Re: Don't why even have even customs checkpoints. Every person in the world has a right to come here and stay.

He’s right. Power over immigration is vested in the executive branch. While there can be no discrimination in the VISA APPLICATION PROCESS, it is well within the president’s authority to block immigration from a certain country or countries.

What really bothers me is how this district court judge applied his order nationwide, and not limited to the federal district he has jurisdiction over. It’s a long story, but due to a technicality in the law he has authority to do this. When it goes up to the Supreme Court, this issue (the jurisdiction one) at the very least will be shot down. As for the national security argument, that is up in the air.

Meow Mixsays:

Re: Re: Re: Re: Don't why even have even customs checkpoints. Every person in the world has a right to come here and stay.

Exactly. That’s my point. It’s a technicality in the law that allows the ruling to be nationwide. The Fifth Circuit court allowed a ruling from a lower court to be nationwide, and the decision was deadlocked in the Supreme Court because Scalia was dead. Thus the appeals court ruling stood. That’s how it’s “legal” right now. But will it withstand a full Supreme Court with 9 justices? I don’t think so…

Roger Strongsays:

Re: Re: Re: Don't why even have even customs checkpoints. Every person in the world has a right to come here and stay.

While there can be no discrimination in the VISA APPLICATION PROCESS, it is well within the president’s authority to block immigration from a certain country or countries.

Incorrect. In 1965 Congress passed the Immigration and Nationality Act which said that no person could be "discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth or place of residence".

More limited bans are allowed in response to specific threats. Trump didn’t have a specific threat.

What really bothers me is how this district court judge applied his order nationwide, and not limited to the federal district he has jurisdiction over.

As you point out, it’s a federal law. It can’t be invalid in one district while valid in another.

A district judge can rule on it; that’s how it works. And if you don’t like his decision, you can take it to a higher court and they may rule differently. But "this issue (the jurisdiction one)" will not be shot down.

Meow Mixsays:

Re: Re: Re: Re: Don't why even have even customs checkpoints. Every person in the world has a right to come here and stay.

Slight correction then, there’s no discrimination in the issuance of a visa. However, issuance of a visa and letting someone in the country are two separate issues. You can have a visa but still be blocked from entering if there’s a national security concern. One hypo: imagine a terrorist obtains a valid visa, but later intel proves that he’s coming in with an intent to commit an act of terror. He can certainly be blocked from entering on national security grounds. Now imaging that there’s evidence that certain nations have these kinds of individuals in them. Couldn’t you block all people from that country temporarily? At least until the threat is assessed further?

Meow Mixsays:

Re: Re: Re: Re: Don't why even have even customs checkpoints. Every person in the world has a right to come here and stay.

Federal law can and does conflict all the time (by that I mean in its interpretation). It’s called a circuit split. It happens all the time: https://en.wikipedia.org/wiki/Circuit_split

That’s when the Supreme Court steps in.

The real issue is whether a district court in Washington can rule on a nationwide issue. It’s out of its jusrisdiction. This should be a slam dunk issue for SCOTUS. The immigration ban will be more nuanced.

GristleMissilesays:

Re: Re: Don't why even have even customs checkpoints. Every person in the world has a right to come here and stay.

Funny, it almost reads like you’re saying that Trump’s executive order was not the rights Armageddon folks acted like it would have been.

Heck, maybe ideologies that are inherently antithetical to our western secular values might not be able to mix with such easily and could be temporarily restricted from immigration.

Maybe tossing fags off of rooftops and raping women based on how they’re dressed is a horrific, even barbaric, viewpoint, and stopping those who share that view at the gate is not a bad thing.

(btw, all the horrific shit I mentioned above is supported by Islamic majorities in multiple countries. “Alternative facts” is code for “facts that I don’t like”)

Richardsays:

Re: Re: Re: Re: Don't why even have even customs checkpoints. Every person in the world has a right to come here and stay.

Do you really want to get into a pissing match over who’s religion is worse.

It isn’t about that – it is about which religion poses a threat to our values (ironically the very values that I suspect you think you are trying to promote.)

Now we could argue the toss about the historical record of violence etc but that isn’t the point here.

Alternatively we could argue about the theoretical doctrines as laid down in the texts.

Or we could argue about the moral record of the religion’s founder.

However neither of these is the point.

The real problem is the organisational structure of the faith.

Have a read of this short story to get the idea:

https://freeclassicshortstories.blogspot.co.uk/2016/01/the-snowball-effect-by-katherine-maclean.html

Now compare the early expansion of Islam and the way it has held on to almost all of its conquests.

The real problem is the rules of the faith which form a kind of ratchet that keeps people and territories on board.

To see the problems faced by those who want to leave have a look at this woman’s experiences:
https://areomagazine.com/2016/12/19/sarah-haider-on-leaving-islam-changing-liberals-minds-and-ex-muslims-of-north-america/

Now consider this: Only a few territories have ever been de-islamized and many territories once under muslim control have had the minority (orignally majority) populations cleansed out slowly – often over centuries.

This woman’s point of view gives some information on that:
https://medium.com/@najwa.najib/donald-trump-is-good-for-middle-eastern-christians-350f049bed62#.quv1fzf55

Of course the few places where islam has been forced to retreat have always required extreme brutality (the Reconquista and the Balkans spring to mind).

In contrast Christianity has faded away without a fight in europe – and for that matter in many places/social groups in the US.

Anonymoussays:

Re: Re: Re: Don't why even have even customs checkpoints. Every person in the world has a right to come here and stay.

We thought our education world ranking was bad before, just wait – it’s going to be abysmal.

Kids will learn the earth is 6000 years old, humans co-existed with dinosaurs and natural disasters are caused by the gays. Just imagine going over your child’s homework with them. Do you correct the things they were taught and risk the wrath of teacher retribution? Parent teacher conferences will be a wild ride so fasten your seat belt.

Oh – and you think the good teachers who rebel will not be fired? Hahaha, you so silly.

Anonymoussays:

Re: Re: Re: Re: Don't why even have even customs checkpoints. Every person in the world has a right to come here and stay.

Kids will learn the earth is 6000 years old, humans co-existed with dinosaurs and natural disasters are caused by the gays. Just imagine going over your child’s homework with them. Do you correct the things they were taught and risk the wrath of teacher retribution? Parent teacher conferences will be a wild ride so fasten your seat belt.

You do know that the Bible was used as a regular textbook in schools for many years (from the 1600s until 1953) in the United States, right? You mock because you’re ignorant.

Davidsays:

Re: Re: Re: Re: Re: Re: Don't why even have even customs checkpoints. Every person in the world has a right to come here and stay.

Uh no? It’s weaved quite more tightly into the fabric of our civilization than “a work of fiction”. Just like fossils are not “a work of fiction” because stone creatures would not have been able to move.

Calling the Bible “a work of fiction” is about as useful as calling fascism “a piece of history”. You can’t just cross it off and be done with it. You have to keep watching out.

William Braunfeldsays:

Re: Re: Re: Re: Re: Re: Re: Don't why even have even customs checkpoints. Every person in the world has a right to come here and stay.

“Calling the Bible “a work of fiction” is about as useful as calling fascism “a piece of history”.”

I’m not sure you’re drawing a comparison that is doing your side any favors, here. :p

Davidsays:

Re: Re: Re: Re: Re: Re: Re: Re: Don't why even have even customs checkpoints. Every person in the world has a right to come here and stay.

Ah yes, the “your side” fallacy. Just because I know what I am talking about does not automatically place me on a “side” opposite to you.

One does not need to be part of a team in order to think and have a nuanced view. It actually tends to make it harder.

Roger Strongsays:

Re: Re: Re: Re: Re: Don't why even have even customs checkpoints. Every person in the world has a right to come here and stay.

The same folks teaching the same book also taught that the Sun and planets and stars revolved around the Earth.

Your problem is that people mock because they’re NOT ignorant.

Anonymoussays:

Re: Re: Re: Re: Re: Re: Don't why even have even customs checkpoints. Every person in the world has a right to come here and stay.

“Your problem is that people mock because they’re NOT ignorant.”

A complete non sequitur…

A persons ignorance has no bearing upon their desire to mock others. Knowledge is not a requirement of any kind. Go back to grade school.

Anonymoussays:

Re: Re: Re: Re: Re: Re: Don't why even have even customs checkpoints. Every person in the world has a right to come here and stay.

The same folks teaching the same book also taught that the Sun and planets and stars revolved around the Earth.

The Bible never says the sun, planets or stars rotate around the Earth.

Anonymoussays:

Re: Re: Re: Re: Re: Re: Re: Don't why even have even customs checkpoints. Every person in the world has a right to come here and stay.

That hardly refutes what he said.

True, the bible does not teach this, but he was correct when he said that people that teach the bible also taught this.

The history is there and well recorded.

Davidsays:

Re: Re: Re: Re: Re: Re: Don't why even have even customs checkpoints. Every person in the world has a right to come here and stay.

The same folks teaching the same book also taught that the Sun and planets and stars revolved around the Earth.

And others taught that the Earth revolves around the Sun. And Newton states rotation around the common center of mass (let’s not delve into the details of elliptical orbit right now). And Einstein says that there is no canonical coordinate system and either view can be taken without causing a contradiction, with the celestial bodies moving along geodesics in gravity-bent space-time.

And yet for modern man the "truth" is that the Earth revolves around the Sun. That’s the simplification we feel good about.

PaulTsays:

Re: Re: Re: Re: Re: Don't why even have even customs checkpoints. Every person in the world has a right to come here and stay.

“You do know that the Bible was used as a regular textbook in schools for many years (from the 1600s until 1953) in the United States, right? You mock because you’re ignorant.”

No, ignorant would be rejecting the last few centuries of knowledge because some book cobbled together from various Greek and Aramaic sources from a couple of millennia ago didn’t mention them.

Davidsays:

Re: Re: Re: Re: Re: Re: Don't why even have even customs checkpoints. Every person in the world has a right to come here and stay.

You know what’s actually pretty funny? If you had to cast the Earth’s and the Universe’s ancient history into terms suitable for illiterate shepherds of 3000?years ago, the first creation account in the Bible (the second one involving humans is a lot less useful in that respect), the seven day thing, is pretty darn good. Eerily so. Much better match to the physicist view than random.

Does that mean something? Well, I hope not. But if those creationists did not get entangled all that much in the “literal meaning of words” nonsense for relating stuff to humans that just did not have the proper words and comprehension at the time this was written down, they’d look a lot less foolish than a “science guy” would like.

Of course, that kind of creationist God image also does not fit the tribal jealous petty God portrayed in the rest of Genesis. But that first (half?) chapter? Impressive. If a physicist wanted to slip an Easter Egg into the Bible source in the 20th?century, it would not have looked all that much different.

Now make no mistake: antique Greek and Egypt already knew how to estimate Earth curvature and radius. It’s hard to guess how the first High Cultures relate to early Genesis drafts (and the Near East harbored several forgotten civilizations) and how much actual knowledge may have rubbed off on the early goat herder religions.

Particularly medieval Christianity does not have an overly impressive relation to science and mathematics (compared to Persia and Arabia, for example).

So there might have been more inspiration and enlightenment and scientific knowledge involved in those early scriptures than our modern Christian scientific vanity is prepared to acknowledge readily.

I suspect that our modern creationists would not have particularly impressed those antique goat herds whose scriptures they imagine embracing.

Richardsays:

Re: Re: Re: Re: Re: Re: Re: Don't why even have even customs checkpoints. Every person in the world has a right to come here and stay.

Particularly medieval Christianity does not have an overly impressive relation to science and mathematics (compared to Persia and Arabia, for example).

Medieval Western Christianity maybe.

However the (so called) Byzantine (actually Eastern Roman) Empire maintained the culture of ancient Greece/Rome for most of this period. What you call arabia mostly got its learning from there.

Anonsays:

Re: Re: Re: Re: Re: Don't why even have even customs checkpoints. Every person in the world has a right to come here and stay.

You do know that the Bible was used as a regular textbook in schools for many years (from the 1600s until 1953) in the United States, right? You mock because you’re ignorant.

Funny how you cite the usage of bible as a textbook back in the day?.but you do know that during that same time period or a part of that period, people mostly believed that earth is the center of the universe and that dinosaurs roamed the earth along with humans not too long ago. Oh?my bad?maybe you do believe that stuff yourself??and you are absolutely right, we should go back to using bible as regular textbooks and ditch the scientific advancements because you know sciences are not up to biblical standards. In the same spirit, let?s get rid of the internet and go back to using carrier pigeons or may be shout from the top of a hill. We will do away with automobile and go back to using horse drawn carriages. Let?s get rid of most modern guns and go back to using muskets and cannons (I bet civil war reenactors would love to).

Anonymoussays:

Re: Re: Re: Re: Re: Don't why even have even customs checkpoints. Every person in the world has a right to come here and stay.

You do know that the Bible was used as a regular textbook in schools for many years (from the 1600s until 1953) in the United States, right? You mock because you’re ignorant.

No, I mock because that was a stupid fucking thing to do.

Anonymoussays:

Re: Re: Re: Re: Re: Don't why even have even customs checkpoints. Every person in the world has a right to come here and stay.

“You do know that the Bible was used as a regular textbook in schools for many years (from the 1600s until 1953) in the United States, right? You mock because you’re ignorant.”

Please cite the biblical passage that:
– states the age of planet earth
– describes humans and dinosaurs living side by side
– says natural disasters are caused by “the gays”

Yes, I freely admit my ignorance ….. in areas other than your simplistic bullshit which is easily verified as being such.

Anonymoussays:

Re: Re: Re: Re: Re: Re: Don't why even have even customs checkpoints. Every person in the world has a right to come here and stay.

Please cite the biblical passage that:
– states the age of planet earth
– describes humans and dinosaurs living side by side
– says natural disasters are caused by “the gays”

Those are nowhere in the Bible, but regressives continue to claim they are, proving their ignorance.

Re: Don't why even have even customs checkpoints. Every person in the world has a right to come here and stay.

Contrary to the hysterics and media narrative, it’s states and cities that have the most influence on schools. The Dept of Education really has little power or influence.

It is perhaps the safest corner of the executive branch to shove a big donor.

Davidsays:

Re: Don't why even have even customs checkpoints.

This changes nothing about how the US has allowed visitors into the country. Indeed, it is about maintaining the status quo and continuing to allow those from seven countries the same access they have had for years and that every other country still has. Once vetted and with a valid visa or greencard then they are welcomed to our country.

Now your confusion is that somehow that process is now missing. That cannot be further from the truth. The decision doesn’t change anything, in fact it clearly states that POTUS has violated the constitutional rights of those that were already vetted and in the country.

While the neo-nazis like to conflate non-white to everyone not a US citizen they have always had a lack of understanding regarding the constitutional protections that cover ‘persons’ in these United States. Much like POTUS doesn’t understand this particular protection, most likely because the neo-nazi Steve Bannon is advising him on matters neither are qualified in.

Mike Masnicksays:

Re: Don't why even have even customs checkpoints. Every person in the world has a right to come here and stay.

From that decision, Immigration and Customs are completely unconstitutional. Why, if the Canadians and Mexicans want to pour across without limits, it’s their right.

You’re wrong.

All the order says is that the lower court had every right to put a temporary ban on this executive order.

The point that you seem to focus on lower down, that all aliens have Constitutional rights, is different from what you seem to think it is. It’s just saying that they have a right to due process — not that they have a right to enter the country unimpeded. The issue here is whether or not there was due process provided to those people, and the court here doesn’t see any evidence to support that.

I’m sorry if we didn’t make that clear.

sorrykbsays:

Re: Don't why even have even customs checkpoints. Every person in the world has a right to come here and stay.

This won’t stand. It’s just lawyers being lawyers.

Lawyers being lawyers is how the whole court thing works.

That said, if the Administration wants to send non-lawyers instead to the next hearing — maybe even send Trump himself to argue his case — I certainly won’t object.

Anonymous Cowardsays:

Title 18 Capter 12 US Code 1182

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate. Whenever the Attorney General finds that a commercial airline has failed to comply with regulations of the Attorney General relating to requirements of airlines for the detection of fraudulent documents used by passengers traveling to the United States (including the training of personnel in such detection), the Attorney General may suspend the entry of some or all aliens transported to the United States by such airline.

Only a lawyer or judge could fail to understand this.

https://www.law.cornell.edu/uscode/text/8/1182

Re: Title 18 Capter 12 US Code 1182

Yeah, but on the other hand, we’ve also got a law that says this:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof

But that law’s about Congress, you might say, not the President. Well, yes, it was originally, but then later on we got this one too:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

That the President has a right to suspend immigration or travel does not mean that he’s exempted from obeying the equal protection clause. He’s not allowed to ban people from entering the country based on religion.

You can say this was based on geographic region and not religion all you want, but that’s where his past remarks come into play. He said, repeatedly, that he wanted to ban Muslim immigration to the US. Now he’s saying that this is something completely different, and it’s just a coincidence that it targets a bunch of Muslim-majority countries (and that he’s also said that members of "minority religions" will be exempt). That’s obviously not true. He’s, quite obviously, attempting to impose a religious test for entering the US. You can’t do that.

Richardsays:

Re: Re: Title 18 Capter 12 US Code 1182

Congress shall make no law respecting an establishment of religion,

It is pretty clear that Islam was not a factor in the minds of the framers when they wrote that. They were thinking about (at most) various fairly conventional varieties of Protestant Christian.

In fact it is pretty clear that the constitution didn’t block the persecution of Mormons in the mid 1800s – otherwise the would not have all migrated to Utah.

It does also beg the question of "what is a religion?"

Are we required to accept that something is a religion just because it says it is. What about the church of the flying spaghetti monster?

More pointedly, had communism declared itself to be a religion then would (or should) anti-communism have been a possibility. (Of course the anti-"communist" purges are a blot on America’s history).

What about Charles Manson’s "family" and all the other cults?

Just how bad or dangerous does something have to be before we strip this protection from it?

And should it matter if the cult in question has a large following outside the US and has wealthy backers?

Richardsays:

Re: Re: Re: Re: Re: Re: Title 18 Capter 12 US Code 1182

It’s as much a religion as anything else that calls itself a religion
So you subscribe to the theory that "everything that calls itself a religion is a religion."

In which case any cult that calls itself a religion is accorded the constitutional privilege no matter how barbaric.

Or is there some other criterion?

Anonymoussays:

Re: Re: Re: Re: Re: Title 18 Capter 12 US Code 1182

He is actually stating explicitly that “any interpretation” is his parameter.

While that is a bit to the stubborn side, I think his point is that you may have a point in how fluffy religion is defined in USA.

When that is said, you should be able to point out why Islam isn’t a religion based on your assertions. As much as several modern terrorists have islam as a religion, very few of them seems to understand what islam is. Particularly the people claiming to want a califat are usually ignorant of history and secterianism inside Islam.

JEDIDIAHsays:

Re: Title 18 Capter 12 US Code 1182

Except he is not.

And as far as minorities go, that’s just standard language of the definition of a genuine political refugee. This is why Soviet Jews used to get refugee status. They were a shat upon religious minority.

Xians in Syria are genuine political refugees. People just fleeing bombs in Aleppo are not. People who aren’t oppressed minorities can use that normal immigration process (and quotas) like anyone else.

Bringing people here from the other side of the planet on a temporary refugee status that can never convert to citizenship or a green card is probably a stupid idea.

Mike Masnicksays:

Re: Re: Title 18 Capter 12 US Code 1182

Xians in Syria are genuine political refugees. People just fleeing bombs in Aleppo are not. People who aren’t oppressed minorities can use that normal immigration process (and quotas) like anyone else.

You have no idea how the refugee process works. Don’t pretend you do. Because you don’t.

Roger Strongsays:

Re: Title 18 Capter 12 US Code 1182

A lawyer or judge understands that it’s not the only law in existence, and that later laws clarify or supersede earlier ones.

The Inadmissible Aliens law was passed in 1952. But in 1965 Congress passed the Immigration and Nationality Act which said that no person could be “discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth or place of residence”.

Much more limited bans have been allowed, in response to specific threats. Trump didn’t have a specific threat. There’s been a total lack of terrorist killings in America by refugees from those countries in the last several decades. Meanwhile the ban didn’t cover the several countries where the 9/11 hijackers came from. Or where Trump has business interests.

As a growing list of judges has essentially told Trump, “Nice try though.”

Anonymoussays:

Re: Title 18 Capter 12 US Code 1182

Only a lawyer or judge could fail to understand this.

US Code does not supersede the Constitutional protections granted in the 5th Amendment and elsewhere within the constitution. Only a (fill in the blank) could fail to understand this.

Lord knows I do not agree with every judicial finding, however, that is absolutely no excuse to be contemptuous of a presiding judge, let alone four of them, let alone contempt from POTUS. America is a serious country in a vastly complex world. Simplistic, “feel good” “solutions” will do more harm than good.

Anonymous Anonymous Cowardsays:

Good on Them

The reality however will be that our new Attorney General will commit significant resources to overcoming a permanent injunction, and mostly because ‘He says so’ and ‘Screw human rights, and erm er Elizabeth Warren and her hippy pinko following’.

Both the President and the Attorney General are sworn to uphold and preserve the Constitution, but when it comes to ideology, screw the other guys. Wait until they find out that legally admitted green card or permanent residence folk are subject to that same Constitution that they want to deny.

Maybe, just maybe, they should use those resources studying the Constitution and understanding not only what it means, but what was intended. Some big arguments there, but that it should benefit the people seems like a no brainer…oh…wait.

Anonymoussays:

Re: Good on Them

“Screw human rights”

Where is this human right to move between countries codified?

Additionally have you bothered reading the Preamble to the Constitution? It only applies to Citizens… here, let me help your considerable ignorance out.

“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

Does not seem to say this…

“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity AND EVERYONE ELSE, do ordain and establish this Constitution for the United States of America.”

Roger Strongsays:

Re: Re: Good on Them

That may be how the Breitbart crowd chooses to reinterpret it, but most others disagree.

Many of the very people who wrote and signed that Constitution were immigrants or children of immigrants. They knew that the country would continue to be founded on immigrants, and were hardly going to give a big Trump-style F.U. to new arrivals.

That continued right through Ronald Reagan’s “Shining House on the Hill” speech, about opening the borders to all.

Anonymoussays:

Re: Re: Re: Good on Them

You are grossly ignorant. There have been many places, peoples, and countries banned for immigration over the past couple of centuries.

You need some serious history lessons… and BAD!!!!

Yes America was founded upon immigration, and I am all for it, provided we ensure the people we let in are a benefit and not a tax upon the citizens here. I have a friend that is more like Family, from Honduras… he has been trying the legal way but getting fucked by this for more than 3 damn decades… where is his citizenship, where is the outrage for those people, while illegals are strolling across the border and getting treated better than those trying to obey the law?

Dougsays:

Re: Re: Good on Them

It only applies to citizens…

The preamble says the constitution was written by the citizens (the "people of the united states"). It doesn’t say it was written only to apply to citizens.

Paraphrasing, it says "We [citizens] wrote this constitution for these reasons."

More specifically, Article II, Section 1, paragraph 5 says, "No Person except a natural born Citizen, …". There’d be no need for the qualification "except a natural born Citizen" if ‘Person’ was already limited only to citizens.

So it’s certainly not the case that everything in the constitution only applies to or refers to citizens.

Anonymoussays:

Re: Re: Re: Good on Them

I have no way to address your level of stupid… what are you even talking about, and what does “Article II, Section 1, paragraph 5” have to do with what I stated?

The Preamble clearly and unequivocally states who these “liberties” are secured to! “Citizens” that is who! No court, or law, or president can change that, only an Amendment to the Constitution may change it to literally reword the damn Preamble. This is THE founding legal document that describes how the government is to function.

People like you, are why people like Trump, Obama, and Bush along with several judges, police departments and institutions can get away with ignoring the Constitution. You don’t even understand it, so stop wondering why it is all in the shitter, go to the mirror and look at the problem!

ottermatonsays:

Re: Re: Re: Re: Good on Them

The Preamble clearly and unequivocally states who these "liberties" are secured to! "Citizens" that is who!

Odd, then, that the word "citizen" isn’t mentioned a single time. That’s actually kinda the opposite of "clearly and unequivocally"

You can’t master basic English and definitions of words, yet we’re somewhow supposed to accept your legal analysis?!?! BWAHAHAHAHA

DBsays:

Re: Re: Re: Good on Them

The Constitution is best understood using the ideas of the time.

It echo the ideas of the Declaration of Independence that people have ‘inalienable’ or ‘natural’ rights. A government is legitimate only if it respects those rights.

A simple test for arguments that claim a particular right applies only to citizens is if the logical conclusion of the argument is that non-citizens are not human.

Anonymous Anonymous Cowardsays:

Re: Re:

What that article doesn’t say is where those congresscritters got their statistics. Remember all the made up situations the FBI perpetrated?

It is also arguing about people leaving this country to support ISIL, not entering it. Whether they have permanent residence or not, those actions probably have some US code that prevents those actions. None of which has to do with blocking everyone that has already been cleared to live in the US. If one or ten or more individuals need further screening, then screen those, rather than block everyone, even those already cleared, based upon their former place of residence, or birth.

Also, saying that someone is from someplace does not make them complicit with ISIL, nor that they are sympathizers. If there is some probable cause, look closer at them. If not, leave them alone, or keep a very loose, non invasive, Constitutionally correct watch on them. Probable cause does not include where one is from. It has to do with some current behavior.

Anonymoussays:

On one hand, maybe a good thing; gives the left something to crow about, which has been in damned short supply lately.

On the other hand, it is a wonderful tempest in a teapot to keep the partisan divide nicely divided… Perhaps not so great.

But, at the end of the day… WTF is this type of partisan vapid crap doing on Techdirt anyway??? Channeling slashdot?? I don’t see any tech OR dirt, just a bunch of breathless hype you could get on Fox news or MSNBC…

Anonymoussays:

Re:

Since Trump, this place does have a noticeable increase in shrillness to it lately.

I do wish they could tone SOME of it down though. It is threatening to become an echo chamber. They do talk bad about some things that democrats do to be fair, but usually with a soft touch by comparison.

I can live with it, as an independent I really cannot go very many places without facing sheeple in droves.

Anonymous Anonymous Cowardsays:

Re: Re:

"Since Trump, this place does have a noticeable increase in shrillness to it lately."

There is a reason for that. Our President will let you know in 140 characters or less why that is. It remains to be seen whether he can articulate anything more substantive, coherent, or Constitutional. Can you tell us about another President so articulate? There have been dumb, there have been dishonest, there have been obtuse, but none have made their case in 140 characters or less. Is it a sign of the times? Oh, I hope not.

He has no mandate. He lost the popular vote, and only won via the Electoral College. While he may believe that his ideology is right, the majority of Americans didn’t think so. The bought and paid for Republican majority in Congress may find that regardless of PAC money (and other forms of bribery), that the voters don’t actually want them in a couple of years.

So, what should Techdirt do? Lie quietly on the sidelines? Support people? Stick to ‘tech’ stuff? Or continue with their 25 year history of speaking their minds? On a variety of subjects, though they limit those subjects to those they wish to speak about. And YES, those subjects that might interest their readers.

Anonymoussays:

Re: Re: Re:

“…only won via the Electoral College.”

Hmmmm, I’m not a serious student of history, but I’m pretty sure all the elections were won that way… what is your point, exactly? The person you really wanted to win didn’t, and now after 200+ years you want to retroactively change the rules? Gotcha.

Anyway, it’s just disappointing to see this type of rah-rah political tripe infest yet another blog. What’s the star wars quote? “Stay on target…”.

Trump does something terribad regarding a tech topic? I wanna hear about it! Trump does ? Let one of the regular partisan echo chambers cover that garbage.

All just my opinions, of course; feel free to disagree. SOME people actually support other folk’s prerogative to have and share those.

MikeWsays:

Re: Re: Re: Re:

"…only won via the Electoral College."

Hmmmm, I’m not a serious student of history, but I’m pretty sure all the elections were won that way… what is your point, exactly? The person you really wanted to win didn’t, and now after 200+ years you want to retroactively change the rules? Gotcha.

There have been 57 presidential elections in this country. In 52 of them, the electoral college winner also won the popular vote. In one of the remaining 5, the popular vote winner still won more electoral votes than anyone else, he just missed the more than half requirement for outright win. So saying that "he only won via the Electoral College" is a perfectly valid point to make as it applies to this most recent election and only three others. Most of the rest of the Presidents can claim victory in both Electoral College and the popular vote.

Richardsays:

Re: Re: Re: Re: Re:

Most of the rest of the Presidents can claim victory in both Electoral College and the popular vote.

However George W Bush didn’t win either in the popular vote OR in the electoral college*

He only won in court.

Trump did at least win in the electoral college and since that is the way the rules are set it is the only thing that matters.

If the rules had been "popular vote wins" it is far from certain that Trump would not hve won – because campaigning strategies etc would all have been different.

Richardsays:

Re: Re: Re: Re: Re: Re:

*(From Wikipedia) according to Lance deHaven-Smith of Florida State University, based on “the definitive study of the uncounted ballots” (the Florida Ballot Project by NORC at the University of Chicago), if all the legally valid votes in Florida had been counted statewide, Al Gore would have been the winner, a conclusion deHaven-Smith calls “unambiguous and unavoidable.”[4]

MikeWsays:

Re: Re: Re: Re: Re: Re:

I was going off of the official tally which has Bush winning the Electoral College in 2000. If we are to discount that, then “he only won via the Electoral College” would only apply in 1876, 1888, and 2016. Though if we are to discount that, then 1876 becomes debatable as well as SC, LA, and FL were disputed, then awarded to Hayes in a negotiated agreement to end reconstruction. In this scenario, the only relevant elections would be 1888 and 2016.

JEDIDIAHsays:

Aye Caramba

People are screeching about the almighty Constitution through this entire thread without really understanding it and then BS like this comes up where people whine that they didn’t get their way because of something else in that same Constitution. It’s so childish. You don’t always get your way. Get over it. Did you think that Obama was the the end of political history and that we would only have a single party utopia after that? Did you think we would never have a Republican president again because of some nonsense the media fed you?

We are a union of STATES. That is why DeVos is irrelevant. That is why states have disproportionate influence in both our Congress and presidential elections.

Early on, the rest of the country didn’t want to be dominated by one or two large states. We still don’t.

If you didn’t like outcome of the election, then now it’s your turn to be butt hurt for the next 4-8 years.

PaulTsays:

Re: Re: Re: Re:

“Hmmmm, I’m not a serious student of history, but I’m pretty sure all the elections were won that way… what is your point, exactly?”

The point is likely that most previous presidents won both the EC and the popular vote. This is the first time a candidate was utterly defeated in the popular vote, but still won because of the EC. Is that too complicated?

“Trump does something terribad regarding a tech topic? I wanna hear about it!”

Cool. Because, as other articles here articulate very well, this order is directly affecting the tech industry. Glad you’re on board.

JMTsays:

Re: Re: Re: Re:

"…I’m pretty sure all the elections were won that way… what is your point, exactly?"

How about the fact that he got less votes but still won. You don’t think that highlights a massive fundamental flaw in the system? A failure rate of nearly 9% should be considered atrocious for a supposedly democratic voting system.

"The person you really wanted to win didn’t, and now after 200+ years you want to retroactively change the rules?"

Why would you assume this is a recent change of heart and that something needs to happen retroactively. Neither were implied or suggested.

Nothing can change the result, but that doesn’t mean people should continue to highlight how it actually happened. It’s also exactly the right time to point out the Electoral College system is grossly outdated and should be harshly critisized for once again producing a result that goes against the will of the majority. Worse, this time it installed a narcissistic, egotistical, ignorant, incompetent, autocratic wannabe-dictator.

Mike Masnicksays:

Re:

But, at the end of the day… WTF is this type of partisan vapid crap doing on Techdirt anyway???

It’s not "partisan" to report on an important ruling that has major impact on the tech industry, and where nearly the entire tech industry weighed in with an amicus brief.

Also, we regularly have reported on issues related to law and Constitutional rights since the beginning of this site. This is not even remotely outside of our usual coverage.

Finally, it’s my site and I get to decide what goes on it. And that means if I find it interesting, it goes up. I found this to be interesting and relevant and many other readers did as well.

PaulTsays:

Re: Re:

It’s always telling when the major complaint about an article is “stop writing about what I don’t want to read!”. To me, it indicates that not only do they lack the maturity to simply skip over articles they find distasteful (or read a different site), but they have no actual argument against the points raised in the article itself.

Anonymoussays:

Re: Re:

If you’d actually discussed the “major injury” being “suffered” by tech, that might have been interesting, and squarely on topic. Maybe even note that a number of those more high profile companies recently paid out for years of presumably illegal collusion regarding tech labor salaries, making their moral stance on this issue somewhat questionable? The slippery slope this could lead to regarding h1bs? That would be a good, on topic post not well covered elsewhere. Hint hint.

Or, perhaps make Trump bashing/lauding about anything/nothing a new focus, apart from the regular tech topics. Growth and change aren’t bad things.

But, as you pointed out, this place IS your own personal soapbox, and you can obviously do as you please from or with it. The same way actors (who are, at the core, professional liars if you think about it. But I digress..) can use their exposure to provide commentary on topics of their choice unrelated to their actual field of relevancy.

So, given your choice to provide the opportunity for people like me to provide feedback like this, are you really surprised about being called on a plausibly off topic post a reasonable observer would consider overtly partisan?

Mike Masnicksays:

Re: Re:

This ruling is pretty much irrelevant for the tech industry. Sure, certain companies are virtue signaling hard over this but the real impact is negligible. The middle east is just not a hot bed for talent (except for Israel).

You are 100% wrong (again). Having spoken with many of the companies, this has had tremendous consequences already. One large company is cancelling a user event in the US because people from outside the US don’t want to travel here, but they’re not sure if they can do it outside the US, because some of their employees here are afraid they won’t be allowed back in if they do leave.

There are numerous stories like that. Besides, much of this was driven by employees, not the "jobs" issue, but because of basic human decency. The tech industry has long worked hard to provide the world with great innovations. Breaking up the world, creating strife and wars is bad for general progress and innovation in general, not to mention humanity.

lavi dsays:

Trumplation

Court: To rule on the Government?s motion, we must consider several factors, including whether the Government has shown that it is likely to succeed on the merits of its appeal, the degree of hardship caused by a stay or its denial, and the public interest in granting or denying a stay.

Trumplation: You gotta figure in a whole lot of things, if they’re gonna win, big things, like hard stuff caused and the other guy.

C: We assess those factors in light of the limited evidence put forward by both parties at this very preliminary stage and are mindful that our analysis of the hardships and public interest in this case involves particularly sensitive and weighty concerns on both sides.

T: It’s too soon to tell, but we’re taking lots, a whole lot of stuff into account.

C: Nevertheless, we hold that the Government has not shown a likelihood of success on the merits of its appeal, nor has it shown that failure to enter a stay would cause irreparable injury, and we therefore deny its emergency motion for a stay.

T: The so-called government’s screwed. They got nothing, they can produce nothing so they get bupkus.

Anonymoussays:

Re:

While I share the annoyance, if they wanna be angsty me-too commentators on certain topics, well, it’s their blog, and so far it’s been easy enough to ignore the off topic articles… they do have pretty decent descriptions so far.

Plus, if I’m bored and read em anyway, they do give a pretty good idea of the underlying biases and such that exist in the authors; gives a bit of context to other articles.

Mike Masnicksays:

Re:

Does Techdirt understand that I don’t want to see article after article hysterically screaming about Trump?

Can you point to what in the article was "hysterical screaming?"

We are reporting on a lawsuit that is relevant to the stuff we normally write about and follow and did so in the same manner that we report on lots of other lawsuits.

It’s odd to me: when we reported, repeatedly, on lawsuits against the Obama White House, we never had people bitching about "I don’t want to see article after article hysterically screaming about Obama" even though we covered countless lawsuits against his administration, where we regularly agreed with the plaintiffs that the administration had gone way too far.

This isn’t partisan. This isn’t about "Trump". This is about issues that impact us and that we normally write about it. If you want a "safe space" that won’t challenge your view of the world, then maybe go elsewhere.

Anonymoussays:

Re: Re:

It’s odd to me: when we reported, repeatedly, on lawsuits against the Obama White House, we never had people bitching about "I don’t want to see article after article hysterically screaming about Obama" even though we covered countless lawsuits against his administration, where we regularly agreed with the plaintiffs that the administration had gone way too far.

And he had a much higher approval rating too!

PaulTsays:

Re: cheap bastards

“Nah they (the left) want this stuck down for all the cheap foreign labor, Real americans cost too damn much…..”

Trump, who has been known for outsourcing his labour and hiring illegals, is on “the left” now? Do you have a list of the 5 or so people who are still on “the right”, just so we can keep track of who is pure enough for you?

“So. which side will have blood on their hands first”

Trump already botched a raid in Yemen that was delayed by Obama because he knew it was too risky. Trump decided to dive straight in, and caused the deaths of numerous locals, a Navy SEAL and an 8 year old American girl. He’s started washing his hands in blood, and that is just the beginning.

“(she lost, get over it)”

This isn’t about Clinton, so stop the deflection. This is about the direct actions of the orange muppet. Time to man up and own the crap you voted for.

Anonymoussays:

Re: Re: cheap bastards

“Trump already botched a raid in Yemen that was delayed by Obama because he knew it was too risky. “

Before you go patting ole Obama on the back, please keep in mind he’s killed more children with drones than ANY other President….

http://www.cbc.ca/news/canada/manitoba/barack-obama-drone-opinion-1.3899024

http://www.cnn.com/2012/09/05/opinion/bergen-obama-drone/

Anonymoussays:

Re: cheap bastards

Nah they (the left) want this stuck down for all the cheap foreign labor, Real americans cost too damn much…..

No worries – once Trump’s done with getting rid of the labor unions, and any thought of raising the minimum wage, Americans will much, much, much cheaper.

(she lost, get over it)

Somehow, it’s comical that you’re still saying it. How bigly does he have to fuck up before you tards admit you were conned?

Eldakkasays:

In the comments to various stories on this topic on this site and many other, I frequently see commenters decrying the mere audacity of the courts to review an EO – "How dare they, they don’t have the right, it is unreviewable!".

Therefore to me, the most important sentence in the entire ruling is the conclusion of section IV. Reviewability of the Executive Order on page 18 (emphasis mine):

In short, although courts owe considerable deference to the President?s policy determinations with respect to immigration and national security, it is beyond question that the federal judiciary retains the authority to adjudicate constitutional challenges to executive action.

Paul Clarksays:

The System Works for Now

The founding fathers set up your government with three branches to implement checks and balances in the government. So far, it seems to be working.

President Trump came to the white house with the misconception that he can simply write executive orders and they become the law of the land. Your system does not work that way.

All of the comments regarding the various laws in this blog have simply pointed out why you have to tolerate lawyers and judges. The law is complicated and individual laws have to be considered within the full body of laws.

The courts so far have ruled that the executive order is invalid. If President Trump really wants to implement a ban, he needs to work with the legislative branch of the government and either have a new law created or existing laws changed.

The complaint that the courts are considering the previous statements by the president in considering the ban is simply something that needs to be appealed to a higher court.

The argument that there is an urgent threat to the use is a false argument. Refugees go through a long vetting period to get into the US – 18 months at least was the last number I saw.. Yes there are pictures of boats of refugees arriving on the shores of European countries but I have not seen too many pictures of refugees arriving at the shores of the US in boats.

A bigger problem is the current US government is driving the country towards fascism. They are following the standard playbook:
1. Designate an identifiable group of people as a threat to the security of the people. Hereafter called the evilones.
2. Blame anything you can on the evilones.
3. Use propaganda to raise the level of fear in the population. Make them scared of the evilones.
4. Pass laws to protect the population from the evilones.
5. Start a second propaganda campaign identifying sympathizers and collaborators in the populations.
6. Pass laws that suppress civil liberties and increase surveillance on the population in order to protect them from the sympathizers and collaborators.
7. Repeat steps 5 and 6 until you get the laws you need to suppress freedom of the press and political opposition.
8. Pass restrictive laws to control who votes so you can guarantee re-election.

The US is well on its way on this path.

Anonymoussays:

Re: The System Works for Now

If President Trump really wants to implement a ban, he needs to work with the legislative branch of the government and either have a new law created or existing laws changed.

?The exclusion of aliens is a fundamental act of sovereignty ? inherent in the executive power,? the Supreme Court said in 1950. And lest there be doubt, Congress adopted a provision in 1952 saying the president ?may by proclamation and for such period as he shall deem necessary, suspend the entry of all aliens and any class of aliens as immigrants or non-immigrants? whenever he thinks it ?would be detrimental to the interests of the United States.?

Yeah, the laws are already in place.

And Trump will likely win at the Supreme Court level.

Richardsays:

Re: The System Works for Now

A bigger problem is the current US government is driving the country towards fascism. They are following the standard playbook:

I’d not call it fascism – I’d call it McCarthyism. The US has a history of it.

In the most modern context "Erdoganism". (Since he has done pretty much all of the above.

Which can be identified as a form of Islamism (as Erdogan’s party is historically an Islamic party and has reinforced Islam within Turkey).

Then again Erdogan himself said that there is no such thing as Islamism – only Islam. So there we are folks – full circle – you become the very thing you set out to oppose!

Maybe Trump should ban himself from entering the US.

Cowardly Lionsays:

Re: The System Works for Now

I’m surprised at Trump. The National Socialist playbook is far more efficient than the Fascist’s:

1. Burn down Parliament
2. Blame and execute an unemployed immigrant Communist Party member
3. Pass urgent laws suspending civil liberties in order to counter said evil Communists
4. Sit back and enjoy your Thousand Year Reich

Anonymoussays:

Re: Re: Re: Show me the law

I forgot the /s – it’s sarcasm.

The judiciary’s role is to review laws and interpret the constitution.

They did. The president didn’t like that they did their jobs.
Perhaps the president thinks it shouldn’t be that way.

That’s what makes him an idiot.

This has little to do with immigration as opposed to having to do with trying to pass a law that didn’t pass constitutional muster.

Damn pesky constitution. Really comes in handy when babbling about the 2nd amendment. A real pain in the ass with everything else.

Anonymoussays:

Re: Re: Re: Re: Re: Show me the law

As of today, right now, their ruling is the law.

And an appeal to the Supreme Court is certainly an option.

However, the court is split 4-4 right now. If the decision is split, it goes back to the lower court. Had republicans done their job last year, it wouldn’t be that way, but alas, they didn’t.

I don’t need to show anything, as the court has already ruled. You can armchair quarterback the decision all you like, but their rule is the law.

Mike Masnicksays:

Re: Re: Re: Re: Re: Show me the law

Plus, the 9th circuit court of appeals is a joke. 86% of their rulings have been overturned by the Supreme Court. They care little for the law. Instead they push their personal opinions.

Actually, 99.88% of the 9th’s rulings have been left alone. Approximately 0.12% have been overturned. Your statistics are wrong.

And the 9th certainly has its history of wacky decisions (some of which we’ve written about here), but let’s not be completely clueless in our claims. You kind of look ignorant if you spout of that 86% of their rulings have been overturned. And I’m sure you don’t mean to look totally ignorant, do you?

Mike Masnicksays:

Re: Re: Re: Re: Re: Re: Re: Re: Show me the law

ok, I was partially wrong.

No you were 100% wrong. And I can’t believe you’re doubling down on it.

The 86% was for 2012. Did not catch that part.

Again, this is wrong. The Supreme Court left in place well over 99% of the rulings in the 9th Circuit. It agrees to hear a tiny percentage (last stats I saw covering 1999 to 2008) showed that SCOTUS heard approximately 0.15% of 9th Circuit appeals. In other words, it leaves in place well over 99% and just picks up a few outliers.

And, again, the fact that it hears more 9th Circuit cases is no surprise, since the 9th Circuit hears FAR MORE than any other circuit, and often has many really important cases. But the 86% is misleading in the extreme. And to put it into context, the Supreme Court will reverse or vacate significantly more than 50% of the cases it hears (so it’s not like this is a coin flip) BECAUSE it generally only takes cases where some of the justices have serious concerns. Most courts see reversal rates anywhere between 60 and 85% — but, again, only on the cases taken.

That still means that well over 99% of all appeals court decisions are left alone by the Supreme Court, including in the 9th circuit.

If you’re trying to read the tea leaves based on this kind of faulty analysis, you’re going to get into trouble.

Anonymoussays:

The issue is that it’s not a thorough vetting process. We like to think it is, because we like to feel safe.
But the governments in many of these countries are weak/incompetent/corrupt/non-existent. They, for the most part, either don’t have or refuse to hand over information on the people trying to enter our country. Our vetting process is incredibly weak, and terrorists have made it into our country through it.

JEDIDIAHsays:

Um Yeah, It would be nice if you didn't lie to me.

The prospective immigrants can make up any story they like. That would be like me lying on a resume making up my entire work history and claiming I never committed a felony even if I were a convicted axe murderer.

What you are describing is like an employer never running background checks or checking references.

This is a tech forum and you’re expecting us to buy into the idea of blind trust? Are you joking?

Berenerdsays:

A note to President Trump

If the courts say you need a known immediate threat to get past this stay, talk to your buddies at the FBI. They are great at thwarting their own attacks and blaming it on a guy that has no ability to pull off the attack. This way you can point to this and say “SEE I TOLD YOU NOOBS THIS WOULD HAPPEN ROFLOL” and no white people will get hurt by accident. Someone who is not white might, but you don’t really care about that.

John85851says:

In the interest of national security

I think the Supreme Court should weigh in on this and adjust the list of banned countries, in the name of “national security”.
For example, when was the last time someone from Somalia or Sudan participated in a terrorist attack on US soil?
Instead, we need to ban people from Saudi Arabia, since 12 of the 9/11 hijackers came from there.

Oh, but Trump does business with the Saudi royal family and banning people from that country would hurt his businesses? Sorry, “national security”.
After all, the people in Saudi are Muslim, and if Muslims from Iraq and Iran are bad, then so are they. And, no, I doubt anyone on Trump’s team knows (or cares) about the differences between Sunni and Shi’ite Muslims.

Roger Strongsays:

Re: Re: In the interest of national security

Saddam provided safe haven and a base of operations for terrorist groups like the Abu Nidal Organization and the Palestine Liberation Front. Groups which targeted and killed Americans. There was also the attempt on George H. W. Bush life during his visit Kuwait City.

I’d disagree with any attempt to invade or occupy Iraq based on this, but Saddam was no more innocent than… well… the CIA when they backed Orlando Bosch and friend’s terrorism and George H. W. Bush when he granted them safe haven in the US.

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